Opinion
No. 11–P–1645.
2012-10-3
COMMONWEALTH v. Scott SOUZA.
By the Court (GREEN, FECTEAU & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The motion judge correctly determined (and the defendant does not dispute) that the affidavit submitted in support of the application for a search warrant satisfied the first, “veracity,” prong of the Aguilar–Spinelli test. See Aguilar v. Texas, 378 U.S. 108, 114 (1964); Spinelli v. United States, 393 U.S. 410, 414–415 (1969). However, our review of the affidavit reveals that the motion judge erred in concluding that it did not satisfy the “basis of knowledge” prong of that test. Accordingly, we reverse the order allowing the defendant's motion to suppress evidence seized as a result of the search executed pursuant to the search warrant.
“It is well established that an informant's basis of knowledge may be satisfied simply by his or her personal observation of drugs in the place to be searched such as the defendant's apartment.” Commonwealth v. Rodriguez, 49 Mass.App.Ct. 664, 668 (2000), and cases cited. In the present case, the confidential informant had personally purchased drugs at the target apartment on previous occasions and was present inside the apartment on those occasions. Moreover, the informant personally observed drugs and a firearm in the apartment within seventy-two hours prior to the application for the search warrant. Those direct percipient observations by the informant were entirely adequate to satisfy the basis of knowledge test, and it was error for the judge to discount them on the ground that they lacked specificity or corroboration. The order suppressing the evidence seized as a result of the search executed pursuant to the search warrant is reversed.
There is no merit to the “staleness” argument advanced by the defendant in his brief on appeal, for substantially the reasons explained in the Commonwealth's brief on pages 14 and 15.
So ordered.